Obergefell and the future of substantive due process.

Author:Myers, Richard S.
Position::Symposium on Obergefell v. Hodges

Obergefell v. Hodges (1) is an enormously important decision that will have profound effects on marriage and religious liberty in the United States. Those issues will be explored in great detail by many scholars, including several of the speakers at this symposium. (2) This article will focus on a different issue. The principal basis for the Court's holding that the traditional laws defining marriage--as the union between one man and one woman--are unconstitutional was the doctrine of substantive due process. (3) That came as a surprise to some observers because much of the emphasis in the challenges to the constitutionality of traditional marriage laws was on "equality themes." (4)

The Court's reliance on substantive due process revived a doctrine that had fallen into disfavor and opens the prospect that the doctrine might be used in other areas. For example, there has been much focus on whether Obergefell 's due process holding might be extended to protect polygamy. (5) The most important substantive due process issue in the coming years, however, is likely to be whether Obergefell portends a Supreme Court ruling that would overturn Washington v. Glucksberg. (6) Obergefell does seem to make it likely that the Court will invalidate laws banning assisted suicide, and it is that issue this article will address.

  1. Substantive Due Process

  1. A Brief History of Substantive Due Process

    The doctrine of substantive due process has long been controversial. This is readily apparent by simply mentioning a few of the most prominent decisions invoking the doctrine--Dred Scott, (7) Lochner, (8) and Roe v. Wade. (9) This is not the place for a full treatment of the doctrine. (10) This article will largely focus on the modern era of substantive due process.

    During the Lochner era, the Court used the due process clause in a conservative way. (11) The Court's opinions reflected support for a classical liberal view of individual freedom. (12) This persisted for decades in the face of increasing efforts to expand the role of government regulation in many areas. The Lochner era ended at the time of the New Deal. (13)

    By 1963, the Supreme Court had rejected any substantive review of legislation under the due process clause. In Ferguson v. Skrupa, (14) the Court stated:

    The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases--that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely--has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.... It is now settled that States "have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or some valid federal law." (15) In 1965, however, the Court revived the doctrine in Griswold v. Connecticut, (16) although the Court did not candidly rely on the discredited doctrine of substantive due process. (17) In 1973, in Roe v. Wade, (18) the Court did forthrightly rely on the doctrine of substantive due process in effectively striking down the abortion laws of every state in the Union. (19) The modern era was not characterized by the traditional conservative orientation of the Lochner era. The Court seemed keen in Roe v. Wade, for example, to get on the right side of history by siding with what it viewed as emerging social trends. (20)

    But the modern era of substantive due process moved in fits and starts. For example, in 1986, in Bowers v. Hardwick, (21) the Court rejected a constitutional challenge to a Georgia law banning homosexual sodomy. The Court's approach to substantive due process in Bowers seemed to conflict with the Court's approach in its abortion cases. (22) The Court, though, rejected arguments that it ought to overrule Roe and in 1992, in Planned Parenthood of Southern Pennsylvania v. Casey, (23) the joint opinion reaffirmed Roe v. Wade and described substantive due process in sweeping terms. In Casey, the joint opinion (in)famously stated:

    [M]atters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. (24) Casey did not, however, lead to an expansion of the scope of substantive due process. (25) After Casey, a number of lower courts did read Casey's "mystery passage" to support the view that substantive due process protected the '"right to die.'" (26) A number of years ago, this author described these lower court decisions as follows:

    These opinions ignored the opposition to assisted suicide in our history and tradition and appealed to Casey's abstract rhetoric. These opinions regarded the broad language as "highly instructive" and "almost prescriptive" in resolving the assisted suicide issue. According to this view, "the right to die with dignity" accords with American values of self-determination and privacy regarding personal decisions. (27) But when the issue reached the Supreme Court in 1997 in Washington v. Glucksberg and in Vacco v. Quill, (28) the Court rejected the argument that there was a fundamental right to assisted suicide. (29) The Court explained the need for caution in considering whether to expand the category of fundamental rights, "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court." (30) The Court emphasized two key points:

    First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," ... and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed." ... Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. (31) The Glucksberg Court almost completely ignored Casey's expansive approach and adopted a narrow, historically-grounded approach to substantive due process. (32)

    In 2003, however, the Court moved in another direction in Lawrence v. Texas. (33) In Lawrence, the Court invalidated a Texas law proscribing "deviate sexual intercourse" between persons of the same sex. (34) In so doing, the Court revived the broader, more expansive approach to identifying fundamental rights. The Court revived the "mystery passage" from Casey and extolled the virtues of moral autonomy. (35) The Court stated, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." (36) The Court rejected the idea that Texas could condemn homosexual conduct as immoral. As the Court stated, "[t]he issue is whether the majority may use the power of the State to enforce these [moral] views on the whole society through operation of the criminal law. 'Our obligation is to define the liberty of all, not to mandate our own moral code.'" (37) This effort to impose morality was particularly troublesome because the Court viewed Texas as trying "to define the meaning of the relationship [between two consenting adults] or to set its boundaries absent injury to a person or abuse of an institution the law protects." (38)

    Justice Kennedy's Lawrence opinion made it clear that the Court was not trying to do a textual or historical analysis. The Court did not as much as cite Glucksberg, which seemed to set forth the governing analytical framework for substantive due process cases. (39) The Court argued, "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." (40) The key for the Lawrence Court was its own assessment of contemporary trends and its own understanding about the nature of liberty. The Court emphasized that its analysis of recent history demonstrated "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." (41) The Court closed with this passage:

    Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (42) Despite the Court's ruling in Lawrence v. Texas, the Glucksberg approach seemed to remain the dominant approach to substantive due process. (43) Lawrence seemed to threaten the constitutionality "of all morals legislation," as Justice Scalia noted in his Lawrence dissent. (44) But that is not what happened in the lower courts. Certain judges did try to apply Lawrence in new contexts. (45) Most lower court judges, however, were "more cautious and seem[ed] inclined to let the Supreme Court take responsibility for pushing the underlying logic of Casey and Lawrence to its limits." (46) Some of these lower court decisions read as if Lawrence had never been decided. (47) Others acknowledge Lawrence but read the opinion narrowly because of the Lawrence Court's failure to follow conventional methods of doctrinal analysis. (48) Professor Calabresi noted several years ago that Lawrence "is itself an outlier that neither the Supreme Court nor the lower federal and...

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